Category Archives: nick herbert

Winsor will mean more cops on the beat

PolicePolice forces have hundreds, and in some cases thousands, of keen qualified applicants queuing to join up, many already working successfully as PCSOs or special constables.

The  Winsor reforms announced yesterday should be welcomed, first and foremost because they  will allow many of those brave men and women, who would otherwise be blocked, to step up and become full-time, fully-fledged police constables.

A lower starting salary of £19k, with existing PCSOs and Specials allowed to join at £21k, rising to £22k or £23k after 2-3 years, means the public will get more full officers on the beat. The current system where officers have to start on £23,259, rising to £27,471 within two years, means forces cannot let excellent PCSOs train as police officers, because they cannot afford to pay them, while other well qualified applicants are turned away or made to wait for years.

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I recently served for four years as a member of the Kent Police Authority. Because we planned properly, made savings and took difficult decisions others avoided, Kent Police are increasing neighbourhood policing by 520 officers and are still recruiting and training new constables.

Unfortunately many other forces have imposed long-term recruitment freezes and resorted to sacking all officers with over thirty years experience. These are the only two ways they have to manage police officer numbers under the current extraordinarily inflexible police regulations. These in effect guarantee officers a job for thirty years if they get through two years probation.

I was disappointed that Tom Winsor did not initially seem prepared to reform this, particularly as I had already taken much of the flak by introducing a bill in parliament. That led to an unflattering cartoon of me in Police Review, but it also got Chief Constables on the record to support reform of a police privilege the like of which is enjoyed by no other profession.

Winsor has now grasped the nettle and recommended severance, the equivalent of redundancy, to be available where necessary for police, albeit subject to generous compensation, and for this to be available as early as April 2013. This should stop the absurd current practice of police forces sacking experienced and specialist civilians so that unsackable police officers can be paid more to do their jobs, and I hope that minister will have the courage to push this through.

I believe that Tom Winsor is also right to insist that officers should only be paid for having the full range of warranted officer skills if they can actually be deployed.

However,  I know some officers who have been disabled by violent attacks in the line of duty, yet are still doing valuable police work, albeit that they cannot, because of the attack, perform the whole range of police work. They might, as Winsor recognises be as well or better off financially taking an injury award and ill-health pension, but  some will still not want to give up their police warrant. In such special and sensitive circumstances I believe we should allow Chief Constables discretion.

As a fit and spry 54-year old Mr Winsor might have been wise to see discretion as the better part of valour before entering into so stark a critique of male Met officers’ fitness or quite so detailed a prescription of the future fitness regime to which they should be subjected. However, as Winsor has written 80 pages about health and fitness in a report which runs to 630 pages with 150 pages of appendices, officers who do not read all of it can at least use the two weighty volumes (retailing at £91 and not to be sold separately) to help with their work-outs.

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Police WILL be under democratic control

PoliceFor over forty years the police have too often evaded democratic oversight of their operations by pointing to a 1968 judgment by Lord Denning (R v Metropolitan Police Commissioner, ex parte Blackburn [1968] 1 All ER 763)

On Monday the policing minister, the excellent Nick Herbert, killed off the idea that Denning’s judgment exempts the police from democratic control – which must surely be the corollary of tax financing of public services. He stated clearly for the record that the ambit of operational independence, i.e. where the police answer only to the law (and hence judges) and not to political authority, was limited “to specific operational matters and the decisions the police have to make as constables in arresting somebody and in pursuing investigations”.

The common law will now develop in a new context. Judgments which followed Denning, e.g. stating a police authority “is subject to the overall direction of the Secretary of State” or that it is for Chief Constables “to decide how available resources should be deployed”, will have to be reconsidered.

This is because Parliament has spoken. Statutory Instruments in theory represent the will of Parliament. The reality is that they are written by civil servants, signed by a minister and, in the vast majority of cases, go through on the nod without being debated in Parliament.

I did not feel that this was an acceptable way to deal with the Policing Protocol Order, which sets out the division of powers between Chief Constables and the Police and Crime Commissioners who will be elected in November. Parliament should agree this and not just representatives of the Association of Chief Police Officers and the current unelected police authorities.

That is why, with the support of the majority of the Home Affairs Committee and other MPs such as Douglas Carswell and David Hanson, I ‘prayed against’ the Order and obtained Monday’s debate. Judges will now be able to resolve disputes between elected Commissioners and Chief Constables, not on the basis of what Lord Denning thought in 1968, but according to the intentions of Parliament in 2011 as set out in the Policing Protocol Order 2011 and the Hansard record of Monday’s debate.

Extracts from debate

Keith Vaz: “I pay tribute to the hon. Member for Rochester and Strood, who has taken a strong interest in the protocol and was extremely active on the Home Affairs Committee in ensuring that we put a recommendation on it into our report. As r h and hon. Members know, he is due to become a father for the first time in early March, but I would say that the protocol is probably his first child. He was determined that we not only put it in the memorandum, but had a debate, and Members on both sides of the Home Affairs Committee supported him wholeheartedly. He believed, as do we all, that proper parliamentary scrutiny of important proposal is important. …”

Mark Reckless: “It is a pleasure to follow the right hon. Member for Leicester East, the Chair of the Home Affairs Committee. He has referred kindly to the protocol as my baby or my first child, but I should say, at the very least, that the Minister – I am not sure whether this is the right phrase – shares its parentage, as well as that of the overall policy …

… The protocol is a clear and significant document. I should like to put on record my appreciation of all sides of the tripartite, particularly the police. Adrian Lee, the chief constable of Northamptonshire, speaking for the Association of Chief Police Officers, has gone a long way and, in some areas, given significant ground; Tim Godwin and the Metropolitan Police Service have also moved a long way. Given the traditional position of the chief constable having direction and control, it is significant, as noted in paragraph 8.1 of the explanatory memorandum, that the MPS “Specifically welcomed the clear statement that the elected local policing body  would set the strategic direction and objectives of the force.””

The Minister for Policing and Criminal Justice (Nick Herbert): “They [the police] answer to police authorities now, but they will answer to directly elected police and crime commissioners. It is not the intention in the legislation or the protocol to interfere with such operational independence, but we did not think that it would be wise to try and define it. We sought to give clarity in an accessible form to what the legislation says, and have set it out in the protocol.

Mark Reckless: It is welcome that the protocol develops that clarity. I think we all agree that it is not sensible to try to define operational independence in law and that chief constables should have the day-to-day control of their forces, but does the Minister accept that there has been some uncertainty about police authorities and the issues they deal with, and about the remarks made by judges in some cases? I gave an example in relation to oversight by central Government. The protocol and the will of Parliament as expressed in the agreement between the parties we have witnessed today set a new context in which the common law will evolve.

Nick Herbert: I agree, and I think that my hon. Friend will be reassured by my later comments about the judgment he mentioned … Where an accommodation has to be reached between the elected police and crime commissioner and the chief constable [e.g. over whether to use Tasers], the idea that the chief constable could make such decisions regardless of the views of the elected police and crime commissioner is, in my view, erroneous. I am happy to make that clear. I can see that my hon. Friend the Member for Rochester and Strood is concerned so I will give way to him briefly.

Mark Reckless: Were the police and crime commissioner not to give a budget for Tasers, the question of the chief constable’s being able to deploy would not even arise, because the budget is a matter for the PCC.

Nick Herbert: My hon. Friend must be correct when it comes to the new deployment of such a weapon; the issue is whether chief constables could go on deploying existing Tasers. However, I have stated that the Government’s view, which is that while a strict interpretation may be that is an operational matter for the chief constable alone to determine – that would be for the courts to decide – realistically, a chief constable would not be able to pursue such an operational decision in the absence of support from an elected police and crime commissioner. I hope that that also helps to answer the points raised by the Chair of the Select Committee.

I hope those comments also address the concerns raised by my hon. Friend the Member for Rochester and Strood, who described Lord Denning’s famous judgment in R. v. Metropolitan Police Commissioner, ex parte Blackburn, in 1968, as “exorbitant”. Lord Denning said that the police were accountable only to the law, but it is now widely agreed, I think, that that is a narrow and legalistic interpretation of police accountability. The police must now answer to someone for the kind of policing they practise; somebody must set the budget for them and set the plan, and the people must have a voice. The idea that the police answer only to the law in the exercise of their functions is surely relevant only in relation to specific operational matters and the decisions the police have to make as constables in arresting somebody and in pursuing investigations, where it is widely agreed and accepted by all sides that there should be no political interference.”

Conservatives and LibDems v Sir Humphrey

Last night I went on Newsnight to discuss tensions in the coalition.

I made the point that we will not allow the LibDems to block the historic opportunity which the Euro zone crisis gives us to take powers back from Europe. Beyond that though, I had a very friendly discussion with Norman Lamb, Nick Clegg’s chief of staff.

We agreed that the coalition needed to learn from the health bill, where the Department of Health just ploughed on, using backbenchers hand-picked by the whips, to push through Committee provisions about which many Conservatives as well as LibDems had serious concerns.

Very often ‘the LibDems won’t wear it’ is just Sir Humphrey’s latest excuse for inaction.

This has been most obvious to me on policing, where Whitehall is trying to retain central control of police budgets, despite our agreement with the LibDems that we would set up Police and Crime Panels specifically to oversee Police and Crime Commissioners and their budgets.

Civil servants claim in the legislation that the Panels will be able ‘to veto’ Commissioners’ precepts, but the reality is that Commissioners must only ‘have regard’ to what the Panels say. The substantive power in the event of a dispute, to hold a local referendum on the level of the police precept, is given to the Secretary of State.

The Conservatives and LibDems both want to make the police democratically accountable locally. We have two of our most impressive ministers involved in Nick Herbert and Greg Clark, with whom I co-authored a 2005 book ‘Direct Democracy’.

Yet, despite this, the current position in the legislation, although I hope that we may yet agree an amendment to the Localism Bill to correct this, is that Whitehall civil servants will still sit on top, hoarding power. Their judgment on whether a local police precept may be excessive would trump that of both the democratically elected Commissioners and the oversight Panels which are meant to be restoring local democracy to policing. Sir Humphrey would be proud.

Who is in charge, ministers or ACPO?

Today one of the government’s strongest ministers, Nick Herbert, had to come to the House of Commons to make an emergency statement about a matter on which he had been kept in the dark by his officials.

For at least 25 years, under the Police and Criminal Evidence Act 1984 (PACE), the police have released suspects on police bail between arrest and possible charge. Time spent subject to such police bail conditions has not been considered to count towards the PACE time limits for which suspects can be held, i.e. an initial 24 hours and up to 96 hours subject to various approvals.

On 19th May a High Court judge hearing a judicial review in Manchester ruled that this was unlawful, since section 44(3) of PACE states that “The [detention] period shall not … end later than 96 hours after the relevant time” and the “relevant time” is defined by section 41(2)(d) of PACE as when the suspect arrives at the police station following arrest.

That High Court judgment is a binding legal precedent for district judges and magistrates who deal daily with thousands of similar police requests to extend detention long after the initial arrest to which it relates. It is therefore a huge problem for the police.

Amazingly, when Greater Manchester Police told Home Office officials about the problem, they decided not to tell ministers. Instead, officials referred the problem to the Association of Chief Police Officers (ACPO) to decide what to do.

Five weeks later ACPO, with its jumble of committees and ‘ACPO cabinet’ and ‘ACPO leads’, finally got legal advice confirming the implications of the judgment (of which counsel would have made a note on 19th May*). ACPO then had a further meeting with home office officials and only then was a decision made to tell ministers. 

A further week on Nick Herbert has come to Parliament and told us that ACPO has now advised that emergency legislation is necessary. I asked the minister whether he would publish the legal advice, given that this was the basis on which he was asking us to legislate. His reply was:

“I doubt that it would be proper for ACPO to publish its legal advice, which it has received from two Queen’s counsels, but I can confirm that ACPO has written to the Home Secretary to confirm its view that emergency legislation is required. It has given a summary of counsels’ advice, which was given to it since 23 June, and that summary was sufficient to persuade it and us that it is necessary to move forward in the way I have suggested”.

*Update: I have since confirmed that, unusually, the QC was not supported by junior counsel in this case, although I am surprised that alternative arrangements were not made to take down a reliable note of the oral judgment.

Mark Reckless MP: At Last, Democracy Is Coming To Policing

Police

Originally posted on ConservativeHome

Today and tomorrow the House of Commons will put its finishing touches to the Police Reform and Social Responsibility Bill.  It is a long title for one key reform, putting a directly elected individual “in charge” – as the Home Secretary put it on Monday – of each police force. That reform will have huge ramifications as power in policing shifts from the Chief Constable to the elected Commissioner.

Unsurprisingly, the Chief Constables don’t much like that. However, unlike police authorities, which have spent public money fighting their own abolition, most Chief Constables, if not necessarily their Association of Chief Police Officers (ACPO), accept very professionally that it is for elected politicians to set policy under which they operate.

Police authorities are generally considered to have been the weakest of the ‘tripartite’ pillars of police governance, the others being the Home Office and the Chief Constable.  Our plan to deal with that, which I passed to Douglas Carswell to develop further when he replaced me at the Conservative Policy Unit in 2004, was to transfer the police authority powers to people who are elected, so as to reinforce those powers with a democratic mandate.

David Cameron wrote that plan into our manifesto in 2005 and has evangelised it ever since, so much so that he appointed the hugely impressive Nick Herbert as Police Minister, having seen him make the case for democratic control of policing when leading the thknk-tank Reform. The Prime Minister then promised in July 2006 that “We will enshrine operational independence in legislation”. 

It is unfortunate that some concessions have since been made to ACPO, but any apparent increase in Chief Constables’ powers will surely prove illusory once they face Commissioners empowered with a democratic mandate. If this bill fails to give the elected Commissioners the power they need to deliver what the public wants, then they will come back and demand that power, and Parliament will give them the power, as we have for the Scottish Parliament and the Welsh Assembly.

I will nonetheless make the case today and tomorrow for us to get it right first time, to give the elected commissioners the powers they need now, and to give a clear steer to the courts that, in the Home Secretary’s words, the elected commissioners must be “in charge”. Chief Constables must of course make operational decisions regarding investigations and arrests independently of politicians, but it is for the elected commissioners to determine policy and set priorities.

Moreover, if panels of elected councillors are to scrutinise elected commissioners and potentially second-guess their budgets, then we shouldn’t need the Secretary of State to third-guess that process. It may make sense to give the Secretary of State a reserve power to require a referendum if a local council wants a really excessive council tax increase. For policing, that power would surely better be exercised in extremis by the Panel which will scrutinise the police budget and represent the local councils and electorate which would pay for a referendum. 

David Cameron, Theresa May and Nick Herbert are truly driving home the Direct Democracy agenda with the police. They deserve our support.